Henderson v. State, 27985

• Decision Date: 22 February 1956
• Docket Number: No. 27985,27985
• Citation: 163 Tex.Crim. 153,289 S.W.2d 274
• Parties: Louis Oliver HENDERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 274

289 S.W.2d 274

163 Tex.Crim. 153

Louis Oliver HENDERSON, Appellant, v. The STATE of Texas, Appellee.

No. 27985.

Court of Criminal Appeals of Texas.

Feb. 22, 1956.

M. Gabriel Nahas, Jr., Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was convicted of felony theft, with a prior conviction for an offense of like character alleged to enhance the punishment, and his punishment was assessed at confinement in the penitentiary for ten years.

The indictment charged the theft of one shotgun of the value of $88.65 from Robert H. Hampton, on or about the 24th day of November, 1953. Hampton, who was the owner and operator of a retail store in the City of Houston, testified that on the date alleged in the indictment, the appellant was in his store; that as he (Hampton) walked to the back to wait on a customer the appellant was standing by the gun rack; that in a few seconds when he turned around the appellant was gone and when he went to the gun rack he discovered that one of the guns was missing. He further testified that at such time the only persons in the store were himself, the appellant, and the other customer. Hampton identified, by the model, barrel length, and serial number, State's Exhibit No. 1, which was a 12-gauge Winchester Shotgun, and testified that it was the same gun which was missing from his place of business on the day in question. His testimony further shows that the gun in question had a retail market value of $104.85 on the date it was stolen.

The State's Witness, W. D. Brittain, testified that he saw the appellant in possession of the gun around December 1, 1953, and that about a week later the appellant traded the gun to him.

The state offered proof of the prior conviction as alleged.

Appellant admitted the prior conviction but denied that he had stolen the gun. He testified that in December, 1953, he purchased the gun in question, along with another gun, from one Boots Clark, who had since died, and that he sold one of the guns to Mr. Brittain and the other to a Mr. Manson.

The jury chose to accept the state's testimony and reject that of the appellant and we find the evidence sufficient to support their verdict.

Appellant insists that the court erred, in permitting the state to prove, over appellant's objection, that on two prior occasions when the case had been called for trial the appellant failed to answer, and on each occasion his bond was forfeited and he was thereafter rearrested.

This was not error, as proof that appellant had failed to appear for trial and his bonds were forfeited was admissible as evidence tending to show flight. Branch's Ann.P.C., Sec. 135; Dickens v. State, 121 Tex.Cr.R. 298, 53 S.W.2d 41; and Williams v. State, 148 Tex.Cr.R. 427, 187 S.W.2d 667.

By Formal Bill of Exception No. 1, appellant complains of the refusal of the court to permit him to testify that while under arrest on the charge for which he was being tried he told Deputy Sheriff Middleton that he had bought two guns from Boots Clark in December, 1953, just before Christmas, and that he sold one of them to a Mr. Brittain and one to a Mr. Manson in the same month.

The bill, as qualified by the court, certifies that the appellant was arrested several weeks after the date of the alleged offense and was not in possession of the gun or any gun, or any property...